*1 STATES, Appellee, UNITED
Billy CAIN, Sergeant, E. U.S.
Army, Appellant.
No. 03-0212.
Crim.App. No. 9800797. Appeals
U.S. Court of
the Armed Forces.
Argued Oct. 2003. March
Decided 2004.
EFFRON, J., opinion delivered the Court, GIERKE, BAKER, in which ERDMANN, JJ., joined. CRAWFORD, C.J., dissenting opinion. filed a Appellant: Captain For Rob W. Mac- Teetsel, (argued); Donald Colonel Robert Tellitocci, Lieutenant Colonel Mark and Ma- (on jor Allyson brief); G. Lambert Lieuten- Chandler, Jr., ant Colonel E. Allen Jamison, Imogene M. Captain Mary E. Card. Appellee: Captain
For Wig- E. Edward gers (argued); Leeker, Colonel Lauren B. Baines, Margaret Lieutenant Colonel B. (on brief). Major Natalie A. Kolb Judge opinion EFFRON delivered the the Court. general
At a composed court-martial of a alone, military judge sitting Appellant was convicted, pursuant pleas, to his of indecent (two specifications), assault in violation of Article Military Uniform Code of Justice UCMJ], [hereinafter § 10 U.S.C.
He was sentenced dishonorable dis- charge, years, confinement for five forfeiture *2 286 Headquar- allowances, Brigade 1st serving at ROTC and reduction to was pay all Devens, The Fort Massachusetts. pretrial agree- ters at
Private E-l. Pursuant
civilians uncon-
ment,
alleged victims were male
convening authority approved a
the
University
Army.
or the
dis- nected with Norwich
providing
sentence
for a dishonorable
confinement,
forfeiture of
charge, months’
over
military justice chain of command
The
allowances,
Pri-
and reduction to
pay
all
at
brigade commander
Appellant included his
Appeals
of Criminal
vate E-l. The Court
Devens,
summary court-martial con-
Fort
Cain,
OF CRIMINAL after. IT DETER- ERRED WHEN reenlistment, a Subsequent Appellant’s MINED THAT APPELLANT’S brigade assigned to new commander was SEXUAL RELATIONSHIP WITH ensuing year The was marked Fort Devens. LEAD HIS DEFENSE COUNSEL Appellant and by growing tension between DID A NOT CREATE CONFLICT command, by Appellant’s al- exacerbated AP- OF INTEREST DENYING brigade commander and legations that ASSIS- PELLANT EFFECTIVE in sexual officer were involved his executive TANCE OF COUNSEL. improprieties. below, For the reasons set forth we allegations Appellant After submitted his Appellant effective clude that did receive officer, against the commander and executive assistance of counsel and reverse. reopen military authorities decided charges against Appel- investigation into the I. BACKGROUND au- lant that had dismissed civilian been meantime, brigade In the thorities. A. PROCEEDINGS COURT-MARTIAL relieved, but the renewed commander was Assignment repre- 1. investigation of defense into activities con- sent apace. Charges preferred were tinued 15, 1997, against on October charged was October special court-martial con- forwarded to the specifications of with three forcible vening authority Bragg. at Fort 125, UCMJ, § 925 Article 10 U.S.C. under charges alleged The the of- convening au- special court-martial occurred 1993 and 1995. fenses between investigating officer un- thority appointed an UCMJ, offense, § 10 U.S.C. charged der Article
At time of the first (2000), allegations. The Arti- into the to look assigned to the Reserve Offi- (ROTC) Devens. hearing conducted at Fort Department at cle 32 Training Corps cer did not have trial al- Fort Devens University in Because Norwich Vermont. office, detailing responsibility student leged victim was a male non-ROTC the Article represent Appellant at University. counsel to At the time Norwich S, offenses, hearing was exercised charged and third second sexual; Bragg. Major were filed in senior defense counsel at Fort assigned represent Appellant himself to retaliation for “whistleblower” proceedings. complaint against command. The mili- during the Article 32 The Arti- tary judge proceedings subsequent cle 32 review denied the motion.
the chain of command resulted in referral of *3 18, 1997, charges trial on December for plea agreement 3. The by general court-martial. mid-May, In the defense into ne- entered January Appellant assigned In Government, gotiations with the which re- temporarily Bragg to Fort for the duration agreement. pretrial Appellant sulted in a During pretrial trial. in sessions Jan- agreed plead guilty specifications to two uary, agreed Appellant represented to be indecent assault in lieu of two of the forcible S, by Major adding pursu- trial that he was sodomy specifications. convening The au- ing possibility representation civil- thority agreed to direct the trial counsel to expressed ian counsel. He concern with the remaining sodomy speci- dismiss the forcible large facing caseload defense counsel at disapprove any fication and to sentence Bragg impact might Fort and the that it greater discharge, than a dishonorable representation. requested have on his He confinement, pay months’ forfeiture of all and assignment of an additional counsel to assist allowances, and reduction E-l. to Private S, noting prosecution already At a Ap- court-martial session on June attorneys assigned had two to the case. In pellant pleas pre- entered consistent with the February, Major Captain S detailed L as as- agreement. military trial judge The sistant defense counsel and informed the inquiry providence ducted a detailed into the military judge that would not be Appellant’s pleas. concluding After that represented by Ap- civilian defense counsel. pleas provident, military judge were pellant arrangements confirmed these on the findings pleas, entered consistent with those record. and him to a dishonorable dis- sentenced charge, years, confinement for five forfeiture
2. Pretrial motions allowances, pay of all and reduction Private E-l. March, February In the defense filed procedur-
two motions to dismiss the case on grounds. challenged delay al The first B. POST-TRIAL DEVELOPMENTS Const, bringing the case to trial. See U.S. 1. counsel’s suicide Defense (due process) amend. V and Rule for Courts- Martial 907 (speedy [hereinafter tri- R.C.M.] trial, Two weeks after a senior officer in al). military judge The denied the motion. (TDS) Army Trial Defense Service visit- petition extraordinary The defense filed a for Bragg investigate professional ed Fort relief the United States Court of complaint lodged conduct that had been Appeals grounds, Criminal on the same against Major complaint S. The involved a prejudice which was denied without to con- matter distinct from his sideration of during pro- the matter further S, Appellant. Major who was on leave ceedings. Chicago preparation with his wife son in expected reassignment Germany, for an alleged prose- The second motion selective Bragg returned to Fort alone to address the process cution violation of due allegations. reassignment His had been ten- Const, equal protection rights. See U.S. tatively placed pending on hold the results of amend. The motion V. noted that civilian investigation. underlying authorities had dismissed the S, charges against Appellant; meeting offi- Prior to the senior charges cials of the Judge knew when TDS officer visited the Staff Advocate (SJA) 1996; permitted April Corps. reenlist of the XVIII Airborne The were resurrected because the SJA showed the senior officer a letter TDS authority command believed that convening was homo- that had been sent to the letter, July acting prepared the On SJA by Appellant’s parents. The dated trial, convening alleged post-trial recommendation to the days after the conclusion of four authority required R.C.M. 1106. The rec- pressured had proposed approval of the ad- ommendation sexual favors. judged sentence as modified During meeting with the senior a June agreement. recommendation did not officer, Major S asked if there were TDS by Appellant’s allegations made discuss the delays might potential affect his reas- S, parents, the suicide of or other signment. response, the senior TDS offi- intervening Pursuant to R.C.M. events. allegations cer informed made 1106(f), the recommendation was served on S, by Appellant’s parents. Major who was Captain H. defense then upset, allegations. expressed denied the He requested, granted, and was an extension of delay long concern that a could cause the *4 post-trial time to file matters. reassignment Germany, of cancellation resigned to fact appeared but he to be the 11,1998, H September Captain On submit- on that the matter could not be resolved the discovery request ted a for information spot by the senior TDS officer. cerning representation Appellant by of the Major subsequent In S and his suicide. the Major Early morning, took his the next S alternative, requested counsel an in defense package prepared own In a of materials life. pertaining inspection camera of evidence personal attorney, Major tape a for his S left military judge. that information the shortly Al- recording made before his death. request September on was denied on the though recording provide the did detailed grounds was not entitled to relationship Ap- information about his military post-trial discovery and that the pellant or his conduct as lead defense coun- judge’s authority to act on the case ended sel, following it contained the statements: upon of the record of trial. authentication deny forcibly fully I that I ever had sex [Appellant]____ request Defense counsel filed another on 28,
September asking convening authori- ty military judge to refer the matter to the My guilt____ suicide is not an admission of 39(a), post-trial for a session under Article 839(a)(2000). UCMJ, § 10 U.S.C. See my I want to know that death is not an 1102(d). The defense asserted that R.C.M. any charges against of admission of the me military inquiry by judge on the rec- necessary Ap- whether ord was determine right pellant had been denied his to effective Concerning parents’ allega- [Appellant’s] light alleged of im- assistance tion, forced their son to have sex by Major analysis proper activities S. In an me, allegation preposterous---- is authority, prepared convening for the noted that the defense team had secured SJA Appellant, a favorable outcome for Assignment 2. a new counsel and improper relationship had not creat- asserted request post-trial inquiry a interest, actual conflict of and that a ed an counsel, July, Cap- In the assistant defense any post-trial hearing not serve useful L, disqualify tain determined that he should purpose specific allegations the absence representation Appel- himself from further representation. the defense of ineffective lant so that counsel not connected with Fort In recommenda- accordance with his SJA’s represent Appellant during Bragg could tion, authority rejected convening post-trial July Captain proceedings. On proceedings request for further before H new defense was detailed as military judge 2. on November L, although July Captain counsel. no On submitted a Appellant, signed December the defense longer representing the On trial, post-trial memorandum under R.C.M. record of which was authenticated 1106(f) by the conven- day by military judge. for consideration the same empha- years The assistant defense counsel authority. The memorandum earlier. ing DuBay trial, L, Captain at the continuing objection to testified sized the defense’s Major hearing informa- that it was not unusual for S the Government’s refusal release surrounding type in a of this regarding tion the events to involve himself case addition, In the defense con- very S’s suicide. interested cases because Appellant had not received effec- tended that involving misconduct or sex of sexual defi- tive assistance of counsel and kind. guilty rendered his ciencies relationship with S initiated a sexual pleas improvident. The defense asked the very at the outset of their attor- convening authority to trial. In order new present ney-client case. addition, proposed three alterna- the defense 1998,Appellant to Fort In the fall of traveled (1) tive remedies: issuance of an administra- Bragg meeting. for their initial On the eve- discharge Appellant approval tive lieu Bragg, at Fort ning arrived (2) proceedings; court-martial referral advances, which S made sexual of the matter for review inappropri- regarded lant as unwelcome and
judge post-ti’ial in a session under Article December, came to ate. when (3) 39(a); clemency through or a reduction in Fort Devens for Article 32 hear- served, emphasizing post- sentence to time advances, ing, he made further sexual which diagnosis Appellant HIV-positive. trial as led to acts of oral and anal between *5 convening authority The advised the SJA Major Appellant. S and allegations legal error were with- out trial Subsequent merit that the case did not warrant to referral of for clemency. court-martial, action by Appellant either corrective or On De- general learned 11, convening authority adopted cember the being temporarily to that he was transferred approved the SJA’s recommendations and Bragg January in at Fort the behest by the sentence as modified the Major Bragg, Appellant at Fort S. While agreement. clerk-typist worked as enlisted at the TDS Major supervision He
office under S. evidentiary hearing 3. The order worked on the cases of other service mem- bers, own, provided as well as on his and also years, Appellant Over the next two contin- program to the assistance ROTC office. challenge ued to he had 2000, received at trial. On October duties, Appellant In addition to his official Appeals Court of Criminal ordered an Major performed frequent- errands for andS to United ly drove him to evidentiary hearing pursuant from his home. On more DuBay, States v. 17 C.M.A. 37 C.M.R. occasion, they engaged in than one sexual DuBay hearing was held on activity during Another sexual these drives. May following 2001. The section summa- Al- encounter occurred the TDS office. DuBay proceed- rizes information from the though military judge presiding at the ings concerning and from the record of trial DuBay hearing expressed skepticism toas relationship Major between S and Appellant’s testimony, he nonethe- some lant. Major engaged in less concluded that S six or Appellant during seven acts of C. THE PERSONAL AND PROFES- period in which he served as counsel in BE- SIONAL RELATIONSHIP present case. MAJOR AND APPEL- TWEEN S Major did not manifest his homosexual S LANT DuBay activity colleagues. At to his relationship 1. The sexual hearing, judge advocate who served as Appellant’s trial counsel at court-martial assigned represent to Before he himself Major characterized as “one of the last Appellant, Major was aware of S S homosexuality. According Appellant, people I think” was a homosexual. Ma- would jor him trial counsel at S had assisted on another matter six The assistant Major Appellant, confining
court-martial as “a man’s with the conversation to described “during plea negotia- problem relationship man” in his who the course “the defense tions, counsel, Major ... ... According Attorney described homosexual behavior [S].” W, light____” extremely in a than “was less favorable The as- tentative tone, quavered, “if sistant trial counsel added that were his voice and he rambled. question any frightened point to have asked that He described himself as and de- this, case, during pressed.” the course of or other probably laughed you ... would’ve out of Attorney told W that
the room.” reputation extremely had a as “an talented attorney.” Appellant
defense “believed that professional 2. The relationship help no one but could him be [S] exonerated the court.” added DuBay record and the record of trial him S had told that he “would by Appellant reflect various statements made very he, long prison receive a sentence if prior adjudication findings and sentence [S], were not his counsel.” defense expressed in which he satisfaction with Ma- jor attorney, speaking highly W, S as his often According Attorney complimentary approached terms. by conflicting When torn emotions. On the one Captain January hand, L request his assis- relationship the sexual initiated Ma- case, Appellant S, tance jor son, said that Ma- who was married and had a jor Later, doing “great job.” Cap- distress, S was great anxiety, “caused him a deal hand, tain L recalled that had stated and fear.” On the other “he was fear- very grateful “that he was for the work discontinuing ful of the sexual or [Major doing and I were and that reporting S] he was it because of his entrenched belief very happy with us.” When asked spend lengthy prison that he time military judge during providence inquiry attorney.” without as his [S] attorneys, whether he was satisfied with his *6 Attorney Appellant Major W informed responded he in the affirmative. illegal” S’s actions were “unethical developed DuBay The information potentially that the sexual contact “was crim- however, proceeding, ..., Appellant indicates that inal under Articles 125 or 134 whether significant Major misgivings had about S related to or indecent acts.” She throughout process. Early the court-martial expressed improper concern “that this rela- 1997, Appellant tionship [Major December contacted Mr. impair objectivity could S’s] C, organization who on regard representation” worked the staff of with to his providing assistance to service af- members lant. by military policies
fected to related homo- Appellant plead “continued to that he be- sexuality. organization Because the did not lieved that he would to be unable ‘survive’ directly represent persons before courts- Major this court without the assistance of [S] martial, Appellant Mr. C referred to a civil- simply and that he would find himself lawyer, Attorney ian Mr. C also contacted W. Major report inferior counsel were he to [S].” Attorney directly W and advised her that Attorney attempted Appellant W to convince Appellant appeared “distraught to be about counsel, that he seek even if he should new relationship” Major the nature of his S. report Major did not the misconduct of S to Attorney Mr. C also told that when he W authorities, Appellant but declined this suggested Appellant report to that he his complete advice. “reiterat[ed] Major appropriate concerns about to the dependence [Major legal trust and on S’s] authorities, Appellant “expressed great fear skills, [Attorney [and] W] informed potential consequences expose should he he did not believe he could take the risk of Major [S’s] misconduct.” abandoning his counsel.” Accord- [defense] W, Attorney per ing Attorney apparent to Appellant contacted W Mr. me “[i]t my Attorney my experience as counsel and C’s recommendation. W did from own incapable underlying court-martial conversation with him that he was discuss the [Major professional Bragg. rejecting services fense office here at Fort I’ve been S’s] inappropriate July or his advances because of the military judge here now since last deep [Appellant] need of to believe his de- attorneys and I’ve seen most of the who fense counsel could ‘save’him.” work for the trial defense service here at Bragg many They’re in trial Fort times. Subsequent Attorney to his contact with W very good they they at what do and are December, Appellant expressed concern conscientious; and, very ques- there is no representation during initial about his my get pretrial tion in mind that a first sessions of his court-martial. At the January However, first representation. session on 15—well class as I read activity after S initiated sexual you your rights, you’re go free to search Ap- judge provided you’ll pay for a civilian —the pellant with the standard advice as to his yourself____ rights, inquired as to who would military judge then directed S to represent Appellant responded: him. finding assist civilian counsel. [S]; but, I would like to retain due thereafter, Shortly Major S met with a charges, to the I serious[ness] also— T, lawyer, Attorney area, civilian to discuss an just I am new to the I I like said. —I just Attorney got basically unrelated case. S asked T if morning; here this —here and, if I talking Appellant. had the means —that like he would consider Ac- I’d also pursue T, a civilian cording Attorney Major counsel and have that S stated that right to look for that civilian counsel. Like “enormously complicated,” the case was add- said, I I am not from here. I am not ing that help,” particularly he needed “extra legal people familiar with the area or the investigating Eng- terms events in New So, who are out there. I would like to land, negotiations as well as with with the retain, [S], at the being, time but convening authority having aimed at want the legal, election to seek out civilian charges dropped upon based unlawful com- counsel. mand influence. He then prosecu- focused the fact that the Attorney T met with on the tion assigned judge had two advocates to the evening January representa- 21 to discuss case: tion of at his court-martial. After If —if—if government also has two— obtaining Attorney assurances from T that prosecutors, two I would ask that —I’ve preliminary forming discussions such load, seen the case sir. I have con- some attorney-client relationship would be *7 cerns that the defense counsel here on—on fidential, Appellant told the that Bragg being assigned attorneys short the — Major S had initiated a homosexual relation- they that present have would —I do not —I ship shortly Major with him after S became get feel that I would the full benefit a—of Attorney his defense counsel. T told government defense, of a with this case unethical, relationship lant that the was and charges; load. This is a[sic] serious and if relationship that he would insist that case, being Major this is [S] know—I cease if Ap- he became counsel. said, may he is overloaded. I—like I I be pellant responded Major that working S was Massachusetts, from but seen I’ve the case case, doing hard and well with the that and load that this office has. I don’t think Major although “type,” S was not his that, time, Major at this that with [S’s] relationship homosexual had not become so defense, case load or the trial with the Appellant burdensome that felt the need to shortage attorneys they present do have terminate it. defense, help my get that would government provid-
that full benefit of the Attorney possibility T raised the of disclos- ing that defense. ing illegal relationship the details of the military judge responded: The a officials with view towards obtain- Well, you ing I can get Appellant assure that a dismissal of the case.' re- a sponded Major first class from the de- anger he did not want to Major L told career, May Captain S emphasized the or affect Ms S prosecution Appellant that he viewed the information. confidential nature case, having strong a and he recom- as day, During the next further discussions initiate discussions mended that the defense Attorney his that the ac- T reiterated view obtaimng pretrial with a view towards Major tions of S were unethical. He added Major by then had alienated agreement. S only if S that he could take the case prosecution point to the that he was not from the defense team. Ac- was removed negotiations, so position in a to conduct such attorney, Appellant anx- cording to the was Captain L. After a delegated he the task to anyone, that he not tell includ- ious ensure negotiations, parties reached an week of S, ing Major Appellant divulged had guilty agreement, entered his relationship. homosexual nature of the At- pleas specifications of indecent as- to two torney of their T maintained the confidence sault. discussions, repre- preliminary and did not military judge presiding over the Du- The sent at Ms court-martial. Bay proceedings found that there had been trial on the As the case moved towards Ap- relationship between S and sexual spring told a merits representa- pellant throughout period upset over fellow soldier that “he was military judge tion. The concluded way being handled” and re- Ms case was coerced, relationship played not that it required had sexual vealed that guilty role in decision to enter no why favors of him. When asked he did not pleas, that it did not create a conflict of get attorney, replied that “he was another military judge also concluded interest. place ... [He] between a rock and hard provided Appellant team the defense S], [Major happy gone not but he had so filing counsel in terms of mo- with effective [Major far with that he could not turn S] case, challenged government’s tions that roommate, in back.” His whom he former advising about the state of the confided, “distraught” him also described as evidence, negotiating a favorable and fearful of retaliation or additional agreement. Appeals, of Criminal Court charges if he revealed that he had been conclusions, also agreed which with these pressured relationship. Appel- into a sexual any waived conflict concluded gave a account. lant’s mother similar of interest when he declined to follow separate civilian at- recommendation of two Appellant consistently maintained to his torneys to sever plead guilty team that he would not S. sodomy. to forcible He asserted that he had engaged non-consensual sexual activity alleged with the victims. II. DISCUSSION allegations of sod- believed that the forcible omy were false and also was inclined to view AND AD- A. POTENTIAL CRIMINAL sodomy. the ease as a matter of consensual RESULT- MINISTRATIVE ACTIONS investigation case led Mm to con- His *8 BE- THE CONDUCT ING FROM grounds for clude that there were substantial AND TWEEN THE ATTORNEY HIS charges, taking position contesting the CLIENT stale, that the evidence was the victims had S, attorney, engaged in a course credibility problems, there was evidence and client, which Appellant, in of of conduct with improper of the command terms bias possibility of exposed of them to the against Appellant for whistleblow- both retaliation conviction, and shortly prosecution, substantial er activities. Until before case resolved, military crimes of fraterm- on contest- finement for the appeared intent I.A.2, sodomy. An officer who violates zation and ing charges. all As noted Section against fra- of armed forces supra, the defense twice sought dismissal of the custom the may person re- with an enlisted charges procedural grounds, which ternization confinement a sentence that includes rejected by military judge. ceive were act, subject narrowly exceptions. years, punitive separation, for a and drawn two 654(b). result, § if pay all Id. at As a even forfeiture of and allowances. See Courts-Martial, court-martial, 134; prosecuted sodomy for in a Article Manual for (2002 ed.) ], by Major exposed United States MCM the conduct initiated S [hereinafter 83.(e). IV, pro- para. Part Officers and enlisted him and to administrative engage sodomy, ceedings who even if not that could have resulted in invol- members forcible, may homosexuality. untary receive a for each termination for sentence confinement, Moreover, Major years offense that includes five would have faced the punitive separation, possibility discharge soliciting a all a and forfeiture of of MCM, 125; pay committing and allowances. Article homosexual acts “with a subor- IV, para. Part 51.6.1 in circumstances that violate cus- dinate tomary military superior-subordinate rela- mi- Fraternization and are not tionship.” Dep’t Army Regulation policies nor or obscure matters. The (AR) 600-8-24, Dis- Officer Transfers and the armed forces on both fraternization (Feb. 2003) 4-22h(3)(eur- para. homosexuality subject have been the substantively rent version identical to the significant litigation public contro- trial). version in effect at See, versy years. e.g., in recent David S. Jonas, Fraternization: Time For A Ra- Standard, Department tional Of Defense B. ETHICAL CONSIDERATIONS (1992); Jeffrey 135 Mil. L.Rev. 37 S. potential In addition to criminal or admin- Davis, Military Policy toward Homosexu- Army istrative action for misconduct as an Historical, Scientific, Legal als: Per- officer, Major engaged in conduct that (1991). spectives, 131 Mil. L.Rev. 55 Less subjected possibility him to the of additional years than five before trial— disciplinary action for violation of the ethical while both S and were applicable attorneys Army. rules in the Army members of the executive and —the 1.7(b) Rule Rules of Professional legislative government branches of en- Lawyers prohibits representa- Conduct for gaged in highly publicized a review of the interest, specifying tional conflicts of policies pertaining homosexuality in the lawyer represent shall not if “[a] client armed forces. See National Defense Au- may of that client be material- thorization Act for Fiscal Year ly lawyer’s limited ... own inter- 103-160, 571(a)(1), § Pub.L. No. 107 Stat. 27-26, Army AR ests----” Rules of Profes- (codified 654); § 10 U.S.C. 1992). Conduct, Appendix (May sional B 103-200, (1993); H.R.Rep. No. at 1.2(d) lawyer Rule that “[a] states shall not 103-112, (1993). S.Rep. No. at 263 This client, engage, counsel a client to or assist a passage legis- debate culminated lawyer in conduct that the knows is criminal lation, President, signed into law or fraudulent.” Id.
which
presence
declares
“[t]he
persons
armed forces of
respect
activity
who demonstrate
With
to sexual
between
propensity
clients,
engage
attorneys
jurisdictions
or intent to
in homo-
civilian
unacceptable
variety
sexual acts would
positions
create
have taken a
on whether
morale,
high
good
risk to the
complete prohibition
standards
there should be a
dur-
discipline,
ing
ongoing attorney-client
order and
and unit
relationship,
cohesion
military capabili-
activity
that are the essence of
prohibit-
or whether sexual
should be
654(a)(15).
ty.”
See,
§
legisla-
only
specified
e.g.,
U.S.C.
ed
circumstances.
Awad,
discharge
Attorney-Client
tion mandates
service Abed
Sexual Rela-
tions,
engaged
member who
Legal
has
a homosexual
22 J.
Prof. 131
*9
challenge
sodomy
challenge
pre-
1. A
constitutional
as a crim
whether such a
would or should
currently
inal offense
is
before
potential penalties
vail. Our discussion of the
case,
this Court in another
cum,
United States Mar
v.
provi-
in the current case reflects the
granted),
(C.A.A.F.2003)(pet.
Army has endorsed the
Const,
of counsel. U.S.
tive assistance
Standing
Committee
can Bar Association
claims of inef-
Court reviews
ex-
amend VI. Our
Responsibility, as
Ethics and Professional
(1992)
novo. United
of counsel de
Opinion
fective assistance
in Formal
92-364
pressed
246, 249
Key,
v.
57 M.J.
Op. 92-364].
Formal
See States
ABA
[hereinafter
two-prong test
(C.A.A.F.2002)(applying the
Judge Advocate General
Office of the
Office,
Supreme
Strick-
the
Court
of Conduct
established
Standards
Professional
687,
Notes,
668,
Army Law. 48
104
Washington,
1993
466 U.S.
Responsibility
land v.
(1984): “First,
Op.
2052,
92-
1993)(quoting ABA Formal
the
(August
relationship with a
trial,
courts have tak
the federal
case,
the client’s
the client’s
abuse
undermine
question of
approaches on the
en different
lawyer, or create risk
dependence on the
prejudice or
is inherent
whether
there
judgment____”)
lawyer’s independent
specifically dem
prejudice must be
whether
v. Can
Compare
States
onstrated.
United
OF CRIMINAL CON-
THE IMPACT
C.
Cir.1984)(not
(2d
cilla,
requir
725 F.2d
AND ETHICAL VIOLATIONS
DUCT
specific prejudice)
ing a demonstration
RIGHT
THE CONSTITUTIONAL
ON
States,
cerning
range
facing
options
of
the de-
do not
fense. We
know whether
defense
D. THE
OF
COMBINATION
POTEN-
rejected any
specific
this case
TIAL CRIMINAL LIABILITY AND
option
grounds
on the
it was not in
his
ETHICAL MISCONDUCT
interest,
client’s best
or
it was not in
because
appeal
presents
The
us
before
a case
his own
We do
best
interest.
know that
impression,
of first
no direct
with
counter
when confronted about the sexual misconduct
part
in civilian law. The case involves a
client,
his
a
only
it was
matter of hours
volatile mixture of sex and crime in the con
before he took his own life.
of
military’s
text
treatment
fraterniza
tion
as criminal offenses.
uniquely proscribed
relationship be-
inherently
us
prejudicial
fore was
and creat-
Defense
counsel’s conduct
his client
per
a
ed
se conflict of interest
counsel’s
placed both
and client at the
representation
Appellant.
of the
The facts of
prosecution
risk of criminal
for violating the
limited,
distinguishable
this case are
from the
UCMJ,
very
article of the
Article
a
consensual
between
civilian
subject
present
was the
of the
case. Well
counsel and his client that we considered in
trial, repeatedly
before
onset of
Babbitt,
per
where we declined
find such a
placed
personal
himself at risk of severe
Here,
conflict.
se
tain
who
experienced,
S was the
lead
ment.
majority’s
respectfully
I
from the
dissent
relied
counsel
case.
on
per
of a
of
creation
se rule
ineffectiveness
benefit
S and was entitled to the
of
contrary
precedent.
to Supreme
that is
Court
conflict-free advice from
S about the
162, 172-73,
Taylor,
122
Mickens v.
535 U.S.
him. He did
range of alternatives before
(2002)
1237,
(noting
152
291
S.Ct.
L.Ed.2d
that advice.
receive
per
of
se
that because there is no rule
inef
fectiveness, an
must
appellant
demonstrate
waiver,
respect
we note
With
significantly
that “conflict
affected counsel’s
the court below relied on
discus
Florida,
performance”).
Nixon v.
But cf.
Attorney
lawyers,
with two civilian
sions
W
(Fla.2003)(defendant’s acquies
MJ: your consciously waived agreement intelligently into this that aren’t written self-incrimination, plead guilty? to a trial attempt get rights against and to be of the facts a court-martial No, Your Honor. ACC: you. against confronted the witnesses your guilty provi- is Accordingly, plea of Paragraph [of MJ: ... accepted. says plead the offer to dent. It is agreement] and, no guilty originated you; longstanding efforts Given this Court’s any attempt to force or person made guilty pleas are sincere and vol- ensure that *13 you making offer. That coerce into this legitimate, mutually- untary, only that just your Was it? means it was idea. pretrial agreements put are into ef- selected was, Yes, it Your Honor. ACC: fect, to reverse this Court is remiss doing negate in so his
lant’s conviction—and enough you had time to dis- MJ: Have binding plea his accepted guilty and rescind your de- agreement with both of cuss this any pretrial agreement the absence —in fense counsel? prejudice. have, I Your Honor. ACC: if had suffered Finally, even you advice MJ: Are satisfied with their right affirmatively waived his to prejudice, he pretrial agreement? regarding this freely conflict-free when am, I Honor. ACC: Your deliberately relationship entered into And, you, you again, I ask did enter MJ: counsel. See United States with his defense your Mezzanatto, 196, 201, free will? agreement into the own 115 S.Ct. 513 U.S. (1995)(establishing 130 L.Ed.2d did, ACC: I Your Honor. many appellant may waive of the most you anybody force to do this? MJ: Did rights). constitutional “The de- fundamental No, Honor. ACC: Your of whether there has been termination [depends] upon the intelligent waiver ... fully You understand all of the MJ: and circumstances surround- particular facts pretrial agree- [of terms and conditions case, including background, ex- ing that they going how are to affect ment] and the accused.” perience, and conduct your case? Zerbst, 458, 464, 58 S.Ct. Johnson v. 304 U.S. do, ACC: I Your Honor. The lower court 82 L.Ed. findings regarding of fact made extensive you your de- [with MJ: Are satisfied consensual, informed, nature and deliberate regard your fense advice with counsels’] relationship with S: case? (cid:127) sergeant 33-years-old, a am, ACC: I Your Honor. service, years more than 12 your as defense MJ: Satisfied with them year score of 112 and a two with GT counsel? degree. associate’s Yes, ACC: Your Honor. (cid:127) people that he Appellant told several voluntarily you pleading guilty MJ: Are only because continued your own free will? and of counsel to continue he wanted defense am, ACC: I Your Honor. represent him. consid- Anyone any threat or tried in MJ: made to be an “excel- ered defense counsel plead guilty? any way to force lent, dynamic, aggressive” attor- No, Your Honor. ACC: ney, and believed because counsel would gay, Appellant, like behalf. fight even harder Cain, your plea I Sergeant find MJ: S was Appellant believed voluntarily with full guilty made is available. defense counsel best knowledge meaning of its and effect. (cid:127) him, necessary Appellant never and did what he felt was told defense counsel “excellent, dynamic,
that he had
secure
reservations about
S’s
Indeed,
relationship. Appellant
aggressive” representation.
“Ap-
their
Id.
testified
hearing pursuant
pellant
doing
what
when he
United
knew
he was
short,
DuBay, 17
States v.
C.M.A.
37 made his choice.” Id. at 739.
(1967),
through
I
“[N]ot
C.M.R.
once did
his calculated involvement with his
counsel,
protest
doing
right
what he was
to me or
waived
representation.
what he had me do to him.”
to conflict-free
Cain,
reasons,
respectfully